State v. Goodrich

• Decision Date: 17 July 1981
• Citation: 432 A.2d 413
• Parties: STATE of Maine v. Leroy GOODRICH.
• Court: Maine Supreme Court

Page 413

432 A.2d 413

STATE of Maine v. Leroy GOODRICH.

Supreme Judicial Court of Maine.

Argued June 12, 1981.

Decided July 17, 1981.

David W. Crook, Dist. Atty., Paul Mathews (orally), Asst. Dist. Atty., Augusta, for plaintiff.

Burton G. Shiro Law Offices, Pamela J. Ames (orally), Waterville, for defendant.

Before McKUSICK, C. J., GODFREY and CARTER, JJ., and DUFRESNE, A. R. J.

CARTER, Justice.

Following trial before a jury in the Superior Court (Kennebec County), defendant LeRoy Goodrich was convicted of the rape, 17-A M.R.S.A. § 252(1), of his then ten-year old daughter, Patricia. ¹ On appeal, the defendant argues that (1) the evidence was insufficient to support the conviction, (2) the prosecutrix was not competent to testify, (3) the trial court erred by not giving a requested jury instruction, and (4) the trial court erred by not granting defendant's motion for a mistrial. We vacate the judgment, and remand to the Superior Court for further proceedings.

At trial, the prosecutrix, Patricia Goodrich, testified to the following: on the day before she and her mother moved out of the defendant's home in Clinton (July 11, 1979), she and the defendant (her father) were together in the bathroom. The defendant told her to pull down her pants. She refused. He struck her on the ear, causing an earache. She then pulled down her pants, and the defendant "stuck his private into (her) private." Patricia told her mother about this incident after the family left Clinton.

Patricia's mother, Virginia Goodrich, testified that she and most of her children left the defendant in Clinton on July 12, 1979. She stated that she had never asked Patricia to make up testimony and that Patricia had never told her about the alleged rape.

On cross-examination, Virginia Goodrich agreed that she had made statements in defense counsel's office in April 1980, and to a Sgt. Fippin, to the effect that she "had made all this up in order to get a quick divorce." On redirect, the prosecutor asked if "making this all up" referred to the incident with Patricia, to which Virginia answered: "With the other girl." The defendant objected; the objection was sustained. At side bar, the defendant unsuccessfully moved for a mistrial. ² The jury was not instructed at that time to disregard the witness' answer.

The defendant testified that he had never had sexual intercourse with Patricia. He stated that Virginia had admitted to him and three other people that she had made up the charges, that she had talked them over with her children, and that she had made Patricia talk.

Alta Goodrich, the defendant's mother, testified that in April, 1980 Patricia told her that the charges were not true, but that "they told her to say it." Darlene Goodrich, the prosecutrix's sister, testified that she heard this conversation. Alta also testified that Virginia admitted making up the story and telling Patricia what to say; LeRoy Goodrich, Jr., the prosecutrix's brother, testified that Virginia admitted the same thing to him.

Pastor Thomas Reeves testified that Virginia and the defendant came to him in April. Virginia then admitted that she had "trumped up the charges" against the defendant concerning sexual intercourse with Patricia.

Darlene Goodrich further testified that Virginia told Darlene and Patricia to say that they had had sex with the defendant. Darlene did tell someone that she had had sex with the defendant, but she testified that that statement was a lie.

I. Sufficiency of the Evidence

Having moved for judgment of acquittal at the close of the prosecutrix's case and again at the close of all the evidence, the defendant has preserved for appeal the question of the sufficiency of the evidence. State v. Smith, Me., 400 A.2d 749, 754-55 (1979).

The uncorroborated testimony of a prosecutrix is sufficient to support a rape conviction unless that testimony is inherently improbable or incredible and does not meet the test of common sense. State v. Foley, Me., 392 A.2d 1094, 1096 (1978). In reviewing the evidence as a whole, we view it in the light most favorable to the State, and determine whether a rational trier of fact could find proof of guilt beyond a reasonable doubt. State v. Bessey, Me., 423 A.2d 244, 245 (1980); State v. Lagasse, Me., 410 A.2d 537, 542 (1980).

Patricia's testimony alone is not inherently improbable or incredible. It is the jury's responsibility to determine the credibility of witnesses and the weight to be given their testimony. State v. Flaherty, Me., 394 A.2d 1176, 1177 (1978). We cannot say, therefore, that the evidence was insufficient to support the verdict.

II. Competency of the Eleven-Year-Old Child Witness

The defendant argues that the trial court abused its discretion by allowing the prosecutrix, who was then eleven years old, to testify at the trial. Before the prosecutrix was permitted to testify, she underwent a voir dire examination during which questions were asked by both counsel and by the court.

Maine Rules of Evidence 601 is controlling authority for determining the competency of witnesses. State v. Vigue, Me., 420 A.2d 242, 246 (1980). Rule 601(b) provides in part:

A person is disqualified to be a witness if the court finds that (a) the proposed witness is incapable of expressing himself concerning the matter so as to be understood by the judge and jury either directly or through interpretation by one who can understand him, or (b) the proposed witness is incapable of understanding the duty of a witness to tell the truth.

At the voir dire, the prosecutrix understood and intelligently answered questions concerning her age, birthday and schooling. She perceived and described objects in the courtroom. She remembered and answered questions about a prior conversation she had had with the prosecutor. There is no basis for us to hold that the trial court abused its discretion in determining that the prosecutrix was capable of "expressing (herself) concerning the matter so as to be understood by the judge and jury...." It is not necessary that a prosecutrix testify on voir dire concerning the events about which she will later testify before the fact-finder in order for the judge to determine pursuant to Rule 601(b)(a) that she is capable "of expressing (herself) concerning the matter."

In addition, the prosecutrix demonstrated that she knew the difference between a lie and the truth, and that she knew that people who tell lies "get in trouble." She further testified that she would tell the truth. Again, there is no basis for us to hold that the trial court abused its discretion in determining that the prosecutrix understood "the duty of a witness to tell the truth."

III. Jury Instructions

Defense counsel asked the trial court to instruct the jury that if it should find the prosecutrix's testimony to be uncorroborated then it should scrutinize her testimony with great care. The court declined to do so, instead giving general instructions on credibility including the following:

Remember you, as jurors, are the sole judges of the credibility of the witnesses and the weight their testimony deserves. You should carefully scrutinize all the testimony given, the circumstances under which each witness has testified, and every matter in evidence which tends to show whether a witness is worthy of belief. Consider each witness' intelligence, motive and state of mind, and demeanor and manner while on the witness stand. Consider the witnesses' ability to observe the matters as to which they testified and whether they impress you as having an accurate recollection of those matters. Consider also any relation each witness may bear to either side of the case, the manner in which each witness might be affected by the verdict, and the extent to which, if at all, each witness is either supported or contradicted by other evidence in the case.

At side bar, after the jury had been instructed, defense counsel indicated that he was satisfied with the instructions. He has therefore failed to preserve this claim of error for normal appellate review, leaving us to examine his claim under the obvious error standard of M.R.Crim.P. 52(b). See State v. Morey, Me., 427 A.2d 479, 482 n.2 (1981); State v. Lewisohn, Me., 379 A.2d 1192, 1208 (1977).

We have recently noted that the jury should scrutinize and analyze the uncorroborated testimony of a rape victim with the same degree of care as it would apply in scrutinizing the uncorroborated testimony of any other witness. See State v. Bessey, Me., 423 A.2d 244, 245 (1980). Here, the trial court instructed the jury to consider, in assessing credibility, the extent to which each witness was supported by other evidence. Thus, the jury was told to consider whether a witness's testimony was corroborated. "(A) party is not entitled to have his requested instruction given to the jury if it is already sufficiently covered in the charge actually given and the refusal to give the instruction does not prejudice the requesting party." Id. Here the trial court's failure to give the requested instruction was not an obvious error affecting substantial rights of the defendant.

IV. Mistrial Motion

The defendant argues that Virginia Goodrich's answer, "with the other girl," informed the jury that the defendant may have been involved in unlawful sexual activity with someone other than the prosecutrix, thus unfairly prejudicing the jury against him. We agree.

Evidence of other crimes, wrongs, or acts is not admissible to prove the character of a person in order to show that he acted in conformity therewith unless offered by the accused, or by the prosecution in rebuttal. M.R.Evid. 404(b). Such evidence may be admissible for other purposes such as to prove intent, identity, motive, etc. See M.R.Evid. 404(b) (Advisers' Note). In this case, the defendant did not place in issue whether he had the requisite intent necessary for conviction of rape; nor was there any question as to the identity of the...